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HomeMy WebLinkAbout15- Baxter Square Major Subdivision, Phase 3 Sidewalk Improvements Agreement J-570 Send Original to: City of Bozeman Department of Community Development P.O.Box 1230 Bozeman,NIT 59771 2525724 PLATTE Page: 1 of 13 09/24/2015 02:43:06 PM Fee: $13.00 Charlotte Mills - Gallatin County, MT IMP IIIIIII IIIIII III IIIII IIII IIIIIII IIIIII IIII 111111111111111111111111111111111111111111111111 IIII IMPROVEMENTS AGREEMENT FOR BAXTER SQUARE MAJOR SUBDIVISION,PHASE 3 (SIDEWALK IMPROVEMENTS) This AGREEMENT is made and entered into this D day of {- , 2015, by and between BAXTER SQUARE PARTNERS, LLC, hereinafter called the "Subdivider", and the CITY OF BOZEMAN, a municipal corporation and political subdivision of the State of Montana, with offices at City Hall, 121 North Rouse Avenue, P.O. Box 1230, Bozeman, MT 59771-1230,hereinafter called the "City". WHEREAS, it is the intent and purpose of the Subdivider to meet the conditions of preliminary plat approval, Planning Application No. P15016, for the Final Plat application of i Baxter Square Major Subdivision, Phase 3 (#P-14040), to subdivide 2.57± acres together and create seventeen(22)residential lots,two(2)Open Space parcels, and the remaining area as public streets; and WHEREAS, it is the intent and purpose of the Subdivider to obtain Final Plat approval for Baxter Square Subdivision,Phase 3; and Baxter Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement I WHEREAS, the Final Plat for the Baxter Square Subdivision,Phase 3, was filed prior to the installation of all required subdivision improvements and an improvements agreement with financial security was provided; and WHEREAS,it is the intent and purpose of both the Subdivider and the City to hereby enter into an Agreement which will guarantee the full and satisfactory completion of the required improvements related with the property hereinafter described; and it is the intent of this Agreement, and of the parties hereto, to satisfy the improvements guarantee requirements for the Final Plat approval of Baxter Square Subdivision,Phase 3. NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, it is hereby agreed as follows: 1. Property Description This Agreement pertains to, and includes, those properties which are designated and identified as being: LEGAL DESCRIPTION—BAXTER SQUARE PHASE 3 (SIDEWALK IMPROVEMENTS) That part of the tract of land described in Document Number 2082566, records in the office of the Clerk and Recorder, Gallatin County, Montana, and located in the Southeast Quarter of the Southwest Quarter of Section 35, Township 1 South, Range 5 East of P.M.M., Gallatin County, Montana, described as follows: Commencing at the South Quarter corner of Section 35, Township 1 South, Range 5 East, of P.M.M.; thence northerly 359° 54' 30", assumed azimuth from north, 828.08 feet along the east line of the Southwest Quarter of said Section 35; thence westerly 269° 17' 09" azimuth 330.51 feet along the north right of way line of Sartain Street to the point of beginning of the property to be described; thence westerly 269° 17' 09" azimuth 117.00 feet along the boundary of Baxter Square Subdivision Phases 1 and 2; thence northerly 359° 54' 3 1" azimuth 245.86 feet along said boundary; thence westerly 269° 18' 00" azimuth 213.83 feet along said boundary; thence northerly 359° 53' 48" azimuth 251.00 feet along the west line of the W 1/2, E 1/2, SE 1/4, SW 1/4, of Section 35; thence easterly 089' 18' 00" azimuth 330.88 feet along the north line of the Southeast Quarter of the Southwest Quarter of said Section 35; thence southerly 179' 54' 3 V azimuth 496.83 feet along the west line of Baxter Lane Subdivision No. 1 to the point of beginning. Baxter Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement 2 And that part of Public Park 1, as dedicated on Baxter Square Subdivision Phases 1 and 2, according to the plat thereof, on file and of record in the office of the Clerk and Recorder, Gallatin County, Montana, and located in the Southeast Quarter of the Southwest Quarter of Section 35, Township 1 South, Range 5 East of P.M.M., Gallatin County, Montana, described as follows: Beginning at the southeast corner of said Public Park 1; thence westerly 269' 17' 09", assumed azimuth from north, 36.38 feet along the north right of way line of Sartain Street; thence northerly 357' 54' 28" azimuth 190.10 feet; thence northerly 359' 54' 18" azimuth 55.82 feet; thence easterly 089' 18' 00" azimuth 43.02 feet along the boundary of Baxter Square Subdivision Phases 1 and 2; thence southerly 179' 54' 3 1" azimuth 245.86 feet along said boundary to the point of beginning. Area= 121,748 square feet, 2.7949 acres or 11,310.8 square meters. Subject to existing easements. 2. Improvements This Agreement specifically includes the following improvements: lot sidewalk improvements. The Estimated Cost of said improvements for Lot Sidewalk improvements has been estimated by SIME Construction, 190 Ramshorn Drive, Bozeman, MT 59718, at Twenty four Thousand Seven Hundred Fifty-two and Twenty-five Cents ($24,752.25). The estimate is attached and made a part of this Agreement, as Exhibit"A". 3. Financial Guarantee,Time for Completion of Improvements,Additional restrictions It is the Subdivider's intent with this Agreement to file the Final Plat prior to completion of all required subdivision improvements. Therefore, this Agreement shall be secured by irrevocable standby Letter of Credit No. 8890301535 for an amount not to exceed $37,128.38 (Rocky Mountain Bank, 2901 W Main Street, Bozeman, MT 59718) acceptable to the City of Bozeman, which is one hundred and fifty (150) percent of the Estimated Cost of said improvements. Baxter Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement 3 The Subdivider hereby agrees that the following subdivision related improvements shall be installed and completed not later than one (1) year of the filing of the final subdivision plat for Baxter Square Major Subdivision, Phase 3: lot sidewalk improvements in order to avoid default on the method of security. The Subdivider agrees that no delegation of performance required by this agreement shall relieve the Subdivider of any duty to perform or any liability for the breach of that duty to complete said subdivision improvements required for the Baxter Square Major Subdivision, Phase 3. Upon submission of fully documented invoices for the work performed, said work to be inspected and certified for payment by Subdivider's professional engineers and the City of Bozeman and or its agents as necessary,the City of Bozeman may release a portion of the letter of credit for the work completed by the referenced invoices. 4. Inspection Representatives of the City shall have the right to enter upon the property at any reasonable time in order to inspect it and to determine if the Subdivider is in compliance with this Agreement, and the Subdivider shall permit the City and its representatives to enter upon and inspect the property at any reasonable time. 5. Default Time is of the essence of this Agreement. If the Subdivider shall default in or fail to fully perform any of its obligations in conformance with the time schedule under this Agreement, and such default or failure shall continue for a period of thirty(30) days after written notice specifying the default is deposited in the United States mail addressed to the Subdivider at Baxter Square Partners, LLC,Ami Sayer, 1627 W. Main Street#117, Bozeman,MT, or such other address as the Baxter Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement 4 Subdivider shall provide to the City from time to time, without being completely remedied, satisfied, and discharged, the City may elect to enforce any of the following specified remedies: A) The City may,at its option,declare the financial guarantee to be forfeited and secure the complete construction and inspection of the improvements described herein. The City's representative, contractors, and engineers shall have the right to enter upon the property and perform such work and inspection, and the Developer shall permit and secure any additional permission required to enable them to do so. In the event that any funds remain from the financial guarantee upon completion of all improvements, such funds shall be promptly returned to the Subdivider. B) The City may enforce any other remedy provided by law. 6. Indemnification The Subdivider hereby expressly agrees to indemnify and hold the City harmless for and against all claims, costs and liability of every kind and nature, for injury or damage received or sustained by any person or entity in connection with, or on account of the performance of work at the development site and elsewhere pursuant to this Agreement. Subdivider further agrees to aid and defend the City in the event that it is named as a defendant in an action concerning the performance of work pursuant to this Agreement except where such suit is brought by the Subdivider. The Subdivider is not an agent or employee of the City. 7. Attorney Fees In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement, then the prevailing party shall be entitled to reasonable attorney's fees and costs,including fees,salary,and costs of in-house counsel including City Attorney. 8. Warranty Baxter Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement 5 The Subdivider shall warrant against defects of all improvements and that these improvements are made in a good and workman-like manner for a period of two (2) years from the date of their written acceptance by the governing body. 9. Governing Law This Agreement shall be construed according to the laws of the State of Montana. In the event of litigation concerning this Agreement, venue is in the Eighteenth Judicial District Court, Gallatin County, State of Montana. 10. Modification or Alterations No modifications or amendment of this Agreement shall be valid, unless evidenced by a writing signed by the parties hereto. 11. Invalid Provision The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 12. No Assignment It is expressly agreed that the Subdivider shall not assign this Agreement in whole, or in part, without prior written consent to City. 13. Successors Except as provided in paragraph twelve (12),this Agreement shall be binding upon, ensure to the benefit of, and be enforceable by the parties hereto and their respective heirs, successors and assigns. 14. Filing Baxter Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement 6 The Subdivider shall have this Agreement recorded in the Office of the Gallatin County Clerk and Recorder at the within 10 business days of the signature of the Community Development Director. Baxter Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement 7 SUBDIVIDERS Z�z -��pa-,C�� BY: AMI SAYER TITLE: MANAGING MEMBER STATE OF MONTANA ) :SS County of Gallatin ) On this �day of Q&qVzk , 2015, before me, the undersigned, a Notary Public for the State of Montana,personally a eared Ami Sayer,known to me to be the Managing Member of Baxter Square Partners, LLC, the corporation that executed the within instrument, and acknowledged to me that he executed the same for and on behalf of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the day and year first above written. ANDREA SPAUL,DING j p ff n •' N t ry ptiblic e'ONO7AR1.4 fete of Montana (Printed name) SEAL,'*= Residing at: Notary Public for the State of Montana 9. Bozeman, Montana o ?:�` My commission Expires: Residing at August 25, 2018 My Commission Expires: ) (Use four digits for expiration year) Baxtet•Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement 8 THE CITY OF BOZEMAN BY: WENDY THOMAS, COMMUNITY DEVELOPMENT DIRECTOR CITY OF BOZEMAN STATE OF MONTANA ) :ss County of Gallatin ) On the day of lhl 13�— , 2015, before me, a Notary Public for the State of Montana, personally appeared Wendy Thomas, known to me to be the person described in and who executed the foregoing instrument as Community Development Director of the City of Bozeman, whose name is subscribed to the within instrument and acknowledged to me that she executed the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on the day and year first written above. E SEAI,e, ICIAKENNEDYN NOTARY PUBLIC for the L STATE OF MONTANA — ( Residing at Bozeman,Montana (Printed Name Here)• MY Commission Expires a August oa,2ol9 Notary Public for the e of Montana J Residing at My Commission Expires: A (Use 4 digits for expiration year) Baxter Square Phase 3 Majo►•Subdivision—Sidewalk Improvements Agreement 9 EXHIBIT "A" ESTIMATED COST FOR IMPROVEMENTS --------------------------------------------------------------------------------------------------------------------- Date• Project: Baxter Square Major Subdivision, Phase 3 Developer: Ami Sayer, Baxter Square Partners LLC --------------------------------------------------------------------------------------------------------------------- Improvement Sq. Ft./Ln. Ft Estimated Lot Sidewalk Improvements 5,211 sq/ft @ $4.75 per sq/ft $ 24,452.25 $ 24,452.25 Sub Total $ 24,452.25 150% J12176.13 $ 37,128.38 Approved by City Engineer's Office �,(, Date S `1 �f Baxter Square Phase 3 Major Subdivision—Sidewalk Improvements Agreement 10 ivr� OFFICE FAX st 406.582.9841 406.582.9843 simeconst@montane.com .n.� MAILING ADDRESS STREET ADDRESS a 7720A Shedhorn 140 Bozeman, MT 59718 190 Ramshorn Drive Bozeman, MT 59718 rRUCTION June 16, 2015 Matt, The cost for the remaining sidewalk improvements at Baxter Square will be$4.75/SF. Thanks, Bill Sheets q = a - - - *1520* copy IRREVOCABLE LETTER OF CREDIT Borrower: BAXTER SQUARE PARTNERS, L.L.C. Lender: ROCKY MOUNTAIN BANK 1276 N 15TH STE 103 BOZEMAN OFFICE BOZEMAN, MT 59715 2901 W MAIN ST BOZEMAN, MT 59718 (406) 556-7600 Beneficiary: CITY OF BOZEMAN PO BOX 1230 BOZEMAN, MT 59771-1230 NO.: 8890301535 EXPIRATION DATE. This letter of credit shall expire upon the close of business on 08-07-2016 and all drafts and accompanying statements or documents must be presented to Lender on or before that time (the "Expiration Date"). AMOUNT OF CREDIT. Lender hereby establishes at the request and for the account of Borrower, an Irrevocable Letter of Credit in favor of Beneficiary for a sum of Thirty-seven Thousand One Hundred Twenty-eight & 38/100 Dollars ($37,128.38) (the "Letter of Credit"). These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's address indicated above (or other such address that Lender may provide Beneficiary in writing) during regular business hours and accompanied by the signed written statements or documents indicated below. WARNING TO BENEFICIARY: PLEASE EXAMINE THIS LETTER OF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS REQUIREMENTS, EITHER SINGLY OR TOGETHER, YOU SHOULD CONTACT BORROWER IMMEDIATELY TO SEE IF THE LETTER OF CREDIT CAN BE AMENDED. OTHERWISE, YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURE TO COMPLY STRICTLY WITH ITS TERMS AS WRITTEN. DRAFT TERMS AND CONDITIONS. Lender shall honor drafts submitted by Beneficiary under the following terms and conditions: Upon Lender's honor of such drafts, Lender shall be fully discharged of Lender's obligations under this Letter of Credit and shall not be obligated to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has been drawn. Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other document which complies strictly with this Letter of Credit, and which on its face appears otherwise in order but which is signed, issued, or presented by a party or under the name of a party purporting to act for Beneficiary, purporting to claim through Beneficiary, or posing as Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit, Lender makes no representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary, or any other person, for any amount paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by Beneficiary of the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not and will not present upon the other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds received by Beneficiary in excess of the Letter of Credit's maximum drawing amount. USE RESTRICTIONS. All drafts must be marked "DRAWN UNDER ROCKY MOUNTAIN BANK IRREVOCABLE LETTER OF CREDIT NO. 8890301535 DATED 08-07-2015," and the amount of each draft shall be marked on the draft. Only Beneficiary may complete a draft and accompanying statements or documents required by this Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any draft drawn hereunder. Partial draws are permitted under this Letter of Credit. Lender's honor of a partial draw shall correspondingly reduce the amount of credit available under this Letter of Credit. Following a partial draw, Lender shall return this original Letter of Credit to Beneficiary with the partial draw noted hereon; in the alternative, and in its sole discretion, Lender may issue a substitute Letter of Credit to Beneficiary in the amount shown above, less any partial draw(s). PERMITTED TRANSFEREES. The right to draw under this Letter of Credit shall be nontransferable, except for: A. A transfer (in its entirety, but not in part) by direct operation of law to the administrator, executor, bankruptcy trustee, receiver, liquidator, successor, or other representative at law of the original Beneficiary; and B. The first immediate transfer (in its entirety, but not in part) by such legal representative to a third party after express approval of a governmental body (judicial, administrative, or executive). TRANSFEREES REQUIRED DOCUMENTS. When the presenter is a permitted transferee (i) by operation of law or (ii) a third party receiving transfer from a legal representative, as described above, the documents required for a draw shall include a certified copy of the one or more documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary. COMPLIANCE BURDEN. Lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of this Letter of Credit precisely as written. Beneficiary understands and acknowledges: (i) that unless and until the present wording of this Letter of Credit is amended with Lender's prior written consent, the burden of complying strictly with such wording remains solely upon Beneficiary, and (ii) that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval of such wording. NON-SEVERABILITY. If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental body having jurisdiction, Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio, and both Lender and Beneficiary shall be restored to the position each would have occupied with all rights available as though this Letter of Credit had never occurred. This non-severability provision shall override all other provisions in this Letter of Credit, no matter where such provision appears within this Letter of Credit. GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of Montana without regard to its conflicts of law provisions, and except to the extent such laws are inconsistent with the 2007 Revision of the Uniform Customs and Practice for Documentary Credits of the International Chamber of Commerce, ICC Publication No. 600. This Agreement has been accepted by Lender in the State of Montana. EXPIRATION. Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored if presented to Lender on or before the Expiration Date unless otherwise provided for above.